Troesken v. Herrington (In re S.H.)

• Decision Date: 26 February 2015
• Docket Number: No. CV–14–475,CV–14–475
• Citation: Troesken v. Herrington (In re S.H.), 2015 Ark. 75, 455 S.W.3d 313 (Ark. 2015)
• Parties: In the Matter of the Guardianship of S.H., a minor Tamera Grace Troesken, Appellant v. Larry Herrington and Donna Herrington, Appellees
• Court: Arkansas Supreme Court

2015 Ark. 75

455 S.W.3d 313

In the Matter of the Guardianship of S.H., a minorTamera Grace Troesken, Appellant

v.Larry Herrington and Donna Herrington, Appellees

No. CV–14–475

Supreme Court of Arkansas.

Opinion Delivered February 26, 2015

Rehearing Denied April 9, 2015

Taylor & Taylor Law Firm, P.A., Little Rock, by: Andrew M. Taylor and Tasha C. Taylor, for appellant.

Boyd & Buie, De Witt, by: Christina Boyd and Rufus T. Buie, III, for appellees.

Opinion

RHONDA K. WOOD, Associate Justice

After remand from this court, the circuit court again denied a natural parent's petition to terminate a guardianship over her child.We hold that the circuit court applied a legal standard that failed to safeguard the natural parent's fundamental right with respect to the care, custody, and control of her child.We therefore reverse and remand for the circuit court to enter an order returning the child to her mother's custody.

I.Procedural History

Tamera Troesken gave birth to S.H. in 2005. S.H.'s biological father is Scott Herrington.In 2008, Tamera consented to a permanent guardianship over S.H. in favor of Scott's parents, Larry and Donna Herrington.When the hearing took place, Tamera did not have counsel and was living with the Herringtons, who had retained counsel for the guardianship proceedings.A week or two following that hearing, the Herringtons forced Tamera to leave their home without allowing her to take S.H. Sixteen months later (June 2010), Tamera withdrew her consent and filed a petition to terminate the guardianship.The Herringtons objected to termination, and the proceedings have been ongoing since.

The circuit court first held a hearing on Tamera's petition in April 2011.We recounted the testimony from that hearing in our first opinion.SeeIn re Guardianship of S.H.,2012 Ark. 245, 409 S.W.3d 307(In re Guardianship of S.H. (I) ).There, Tamera testified that she had consented to the guardianship in 2008 because her life was unstable, but was now, at the time of the hearing, ready to regain custody of S.H.Following the hearing, the circuit court ruled that Tamera failed to meet her burden that the guardianship was no longer necessary and her burden that termination of the guardianship was in S.H.'s best interest.As a result, the court denied Tamera's petition to terminate the guardianship.

Tamera appealed to our court.We ruled that the guardianship statute, as applied to Tamera, was an unconstitutional violation of her fundamental liberty interest with respect to the care, custody, and control of her child.In re Guardianship of S.H. (I),2012 Ark. 245, at 15, 409 S.W.3d at 316.We reversed and remanded the case to the circuit court to consider the case in light of the following holding:

A natural parent who has not been deemed unfit is entitled to the presumption that he or she is acting in the child's best interest, even after consenting to a guardianship.Therefore, when a natural parent, who has not been deemed unfit and who has consented to a guardianship, files a petition to terminate that guardianship, that parent must put forth evidence that the guardianship is no longer necessary.Once the court is satisfied that the conditions necessitating the guardianship have been removed, the guardians shoulder the burden of rebutting the presumption that termination is in the child's best interest.

Id.

II.Hearing on Remand

After remand, the circuit court held three separate hearings over the space of ten months.The first hearing took place in October 2012.There, Tamera testified that she still lived in Minnesota and had moved in with her mother.The two of them shared a four-bedroom house, which her mother owned; her mother lived upstairs, and Tamera lived downstairs.Since the first hearing in 2011, Tamera had given birth to another child.Tamera was not married to the child's father.Rather, she testified that she had been in a nearly nine-month relationship with another man, Jeff Dawson.Tamera admitted that she often spent the night with Dawson, who had a ten-year-old daughter, and that S.H. had accompanied her on at least one of her overnight visits to Dawson's house.

Tamera further testified that she had quit her job as a nursing aide and started taking online nursing classes to be a medical assistant in order to eventually obtain a better job and this allowed her to spend time at home with her new baby.She also earned income babysitting her nephew.She testified that she does not use drugs or alcohol and had exercised all her visitation with S.H. since the last hearing.Other character witnesses testified on Tamera's behalf, including Jeff Dawson, Tamera's sister, and Tamera's uncle.All three testified that Tamera was a capable parent.

Donna Herrington testified as well.She said that her son, Scott, was currently at a drug-rehabilitation program in Iowa.Donna thought Tamera neglected S.H. by not being more involved when S.H. was in Arkansas, even though Donna had no evidence that Tamera neglected S.H. during S.H.'s visits to Minnesota.After considering the evidence, the court initially ruled that Tamera “has gone forward with evidence that the guardianship is no longer necessary.”The court then allowed the Herringtons to present evidence rebutting the presumption that terminating the guardianship was in S.H.'s best interest.

First, some of S.H.'s teachers testified that S.H. was a good student and appeared well-adjusted in their classrooms.Then Larry Herrington testified that S.H. takes dancing classes, that he and his wife provide S.H. with school supplies, attend parent-teacher conferences, and provide S.H. with all necessary material needs.Once Larry's testimony ended, the court recessed and continued the case until June 2013.

The only person to testify at the second hearing in June 2013 was a social worker, Lesa Doan.¹Doan testified that she started treating S.H. in 2010 and had met with S.H. every two weeks.Doan had also incorporated Taniera into her sessions with S.H. pursuant to the circuit court's order.Between April 2011 and September 2012, Doan met with Taniera via Skype on five occasions, but she also testified that Taniera missed six other scheduled Skype sessions.Doan testified that Taniera would not notify her if she was going to miss one of the sessions.Doan's ultimate opinion was that S.H. should continue to stay with the Herringtons; if S.H. lived with her mother, Doan opined, it would “adversely affect” S.H.

The third hearing on remand took place in August 2013.The only person to testify was the attorney ad litem, who also issued a report.Like the social worker, he recommended that the guardianship remain in place and that S.H. continue to stay with her grandparents.

After the hearing the court issued a letter opinion.Contrary to its earlier ruling when Taniera had rested her case, the court held that Taniera had not put forth sufficient evidence to show that the guardianship was no longer necessary.Even so, the court made an alternative ruling that the Herringtons had rebutted the presumption that termination of the guardianship was in S.H.'s best interest.

III.Standard of Review

We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous.Graham v. Matheny,2009 Ark. 481, 346 S.W.3d 273.A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made.Id.When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses.Id.

IV.Burden Going Forward

When we decided this appeal the first time, we held that Tamera's initial burden was to “put forth evidence that the guardianship is no longer necessary.”In re Guardianship of S.H. (I),2012 Ark. 245, at 15, 409 S.W.3d at 316We did not specify whether this was a “burden of going forward or ... a burden of proof.”Id. at 22, 409 S.W.3d at 320(Goodson, J., dissenting).We take the opportunity now to clarify the burden.A fit parent who consented to a guardianship puts forth sufficient evidence, and meets the burden going forward, by revoking consent and informing the court that the conditions necessitating the guardianship no longer exist.This is because a fit parent is presumed to act in his or her child's best interest.Troxel v. Granville,530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49(2000);Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841(2002).Requiring any more from a fit parent would violate that parent's constitutional right to make decisions concerning the care, custody, and control of that parent's children.Thus, a fit parent is presumed to act in the child's best interest when consenting to the guardianship and, later, when terminating the guardianship.

The circuit court erred when ruling on Tamera's initial burden going forward.Again, the court initially ruled that Tamera had “gone forward with evidence that the guardianship is no longer necessary.”The court then allowed the Herringtons to rebut the presumption that termination of the guardianship was in S.H.'s best interest.However, the court's letter opinion stated the opposite by finding “that Tamera did not put forth evidence sufficient to satisfy the court that the conditions necessitating the guardianship have been removed.”So the court allowed Tamera to proceed through the remainder of the October 2012 hearing and two more subsequent hearings without alerting her that the court had changed its mind about whether she had truly met her burden.While this reverse finding raises concerns, we focus instead on the court's written order, which clearly misapplies the law.“To the extent that the court's bench ruling conflicts with its written order, if at all, the written order controls over the court's oral ruling.”Stills v. Stills,2010 Ark. 132, at 12, 361 S.W.3d 823, 830.

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